JUDGMENT
A. Pasayat, J.
1. Order passed by the Commissioner of Land Records and Settlement, Orissa (in short, ‘the Commissioner’) directing correction of settlement records in terms of the finally published record-of-rights (in short, ‘ROR’) till a competent Court corrects the entry, is the subject-matter of challenge in this application. The Tahasildar was directed to correct the records accordingly, Prayer of Chema Mohanty, opp. party No. 3 in that regard was accepted.
2. The vital point involved is whether the Tahasildar in exercise of power conferred under Rule 34 of the Orissa Survey and Settlement Rules, 1962 (in short, ‘the Rules’) framed under the Orissa Survey and Settlement Act, 1958 (in short, ‘the Act’) can change or alter an entry in the finally published ROR in a Mutation Proceeding, for any event which occurred prior to the date of final publication of the ROR. Reliance is placed by the petitioner on the instructions issued by the Board of Revenue (vide Annexure-5) to contend that it is permissible.
3. The background facts as set out by the parties essentially are as follows :
Natabar Mohapatra, grand-father of petitioner No. 1 Harihar, was recorded as intermediary of Bramhottar Niskar interest in Sabik Khata No. 112 of village Bindhanima measuring A 6.24 in Tigiria ex-State. The said interest vested under Section 3A of the Orissa Estates Abolition Act, 1951, (in short, ‘the OEA Act’) on 16.4.1964. After death of Natabar, on 11.5.1964 Natabar’s son Rama Chandra (father of petitioners 1 to 6), and husband of petitioner No. 7) was settled with seven plots of the vested lands in O.E.A. Case No. 394 of 1964-65 on payment of salami and arrear rent. On 8.2.1969, rent schedule was granted. On 17.6.1974 Chema Mohanty (opp. party No. 3) was held to be a sikimi tenant in O.L.R. Case No. 16 of 1973-74 under Section 4(l)(i) of the Orissa Land Reforms Act, 1960 (in short, ‘the Land Reforms Act’) in respect of A 3.05 d. out of the aforesaid A 6.26 d. covering four plots. In Crl. Misc. Case No. 22 of 1975 Chema was declared to be in possession, on the basis of the order passed in the O.L.R. Case. On 31.5.1976 petitioners filed O.L.R. Appeal No. 4 of 1975 against the order passed in O.L.R. Case No. 16 of 1973 which was dismissed. On 30.6.1979 O.L.R. Revision No. 50 of 1976 was allowed and the case was remanded for hearing after substitution of the necessary parties. The Revenue Officer substituted the petitioners in O.L.R. Case No. 16 of 1973-74 by order dated 7.8.1981. On 10.1.1984, opposite party No. 3 filed a petition to convert the O.L.R. Case to a petition under Section 36-A of the Land Reforms Act but the same was rejected. On 27.3.1985 Chema was recorded in the ROR on the basis of an order in the earlier case, i.e. O.L.R Case No. 16 of 1979 dated 17.6.1976. On 27.2.1986 the Revenue Officer on remand dismissed Chema’s O.L.R. case as not maintainable. So appeal or revision was filed by opposite party No. 3. In the year 1987, petitioners filed Mutation Case No. 1134 of 1987 under Section 16 of the Act read with Rule 34(l)(c)(d) of the Rules in respect of the four plots recorded in the name of opp. party No. 3 before the Tahasildar, Tigiria. The mutation case was allowed vide order dated 28.2.1989 (Annexure-2). Opposite party No. 3’s appeal (Mutation Appeal No. 4 of 1989) was dismissed on 11.1.1995. By the impugned order passed on 24.7.1996, the Commissioner set aside the orders passed by the Tahasildar and the appellate order and gave direction to the effect that the party aggrieved is at liberty to move the Board of Revenue to challenge the ROR and may move the Civil Court. The record was to be corrected as per the finally published ROR till the competent Court corrects the entry.
4. Primary stand of the petitioners in support of the application is that as per the Government Instructions contained in Annexure-5, the Tahasildar was required to correct the ROR (which was issued by superseding the previous instructions). Same inter alia provides that the Tahasildar will have jurisdiction to mutate the RORs and maps on any of the grounds contained in Rule 34 of the Orissa Government Land Settlement Rules irrespective of whether cause of change arose before or after final publication of the ROR, but they will have no jurisdiction to mutate ROR and maps on the basis of a claim which had been rejected in a Revenue Court during the preparation of the ROR. Relevant portion of the Instructions read as follows :
“xx xx xx xx
In supersession of the Instructions contained in the letter of 25th June, 1990, Government have been pleased to decide that the Tahasildars will have jurisdiction to mutate the RORs, and maps on any of the grounds contained in Rule 34 of the Orissa Government Land Settlement Rules irrespective of whether the cause of change arose before or after final publication of the R.O.R. but they will have no jurisdiction to mutate ROR and maps on the basis of a claim which had been rejected in a Revenue Court during the preparation of the R.O.Rs. Government have further decided that all mutation cases which have been dropped by the Tahasildars solely on the ground of lack of jurisdiction pursuant to the Revenue Department letter No. 29827/R. Dt. 2.5.6.1990 will be reinstituted by the Tahasildars and proceeded with as if the cases had not been decided.
It may be noted that while dealing with the applications for mutation the Tahasildars should not act in excess of the jurisdiction vested in them or exercise any jurisdiction not vested in them under the cover of these instructions. In other words, while deciding a mutation application, it must be ensured that the claim for mutation has not been rejected in revenue Court during the preparation of the R.O.Rs. The principle of res judicata will apply in all such cases and no fresh case for mutation on such claims can be entertained. The order of the Settlement Courts shall be binding on the Tahasildars so far as the subject matter of the dispute is concerned. These instructions should be adhered to scrupulously by all Tahasildars in dealing with mutation applications.”
5. Rule 34 has been referred to state that the said provision prescribes the grounds on which correction of ROR and map is to be made. With reference to the Circular vide Annexure-5 it is stated that the power to correct is available under Rule 34 whether the cause of action arose before or after publication of ROR. The said provision reads as follows :
“34. Grounds on which correction of the record-of-rights and map is to be made – The Tahasildar may on application in that behalf of any person interested or on receipt of a report from any of his subordinate officers or on receipt of a notice from the Registrar or Sub-Registrar appointed under the Indian Registration Act, 1908, or from a Court or on his own motion, order any change of any entry in the record-of-rights according to the rules hereinafter prescribed on any one or more of the following grounds, namely :
(a) that all persons interested in any entry in the record-of-rights wish to have it changed;
(b) that by a decree in a civil suit, any entry therein has been declared to be erroneous;
(c) that being founded on a decree or order of a Civil Court or on the order of any competent authority, the entry therein is not in accordance with such decree or order;
(d) that such decree or order has subsequently been varied on appeal, revision or review;
(e) that any entry therein has no relationship with the existing facts; and
(f) that by preparation of a survey record under Chapter II of the Act, any change is necessitated in the record-of-rights.”
The power to act in terms of Rule 34 is to be exercised by the Tahasildar on one or more of the following contingencies taking place-
(a) an application in that behalf has been filed by any person interested;
(b) on receipt of a report from any subordinate officer;
(c) on receipt of a notice from the Registrar or Sub-Registrar appointed under the Indian Registration Act, 1908;
(d) on receipt of a notice from a Court or on his own motion.
The change can be made on any one or more of the grounds prescribed in the Rule itself.
6. It is to be seen whether any prescription can be made by an executive instruction which runs counter to the statutory prescription. Circular vide Annexure-5 relates to correction of ROR by the Tahasildar. It was issued by the Secretary, Board of Revenue, Orissa, Cuttack. Board of Revenue cannot issue any directive which is contrary to the statutory provision. Any directive which goes beyond the statutory prescription and superimposes a new criterion is bad and lacks jurisdiction. No one can issue direction which in substance and effect amounts to superimposition of new criterion and amendment of statutory provision. An executive instruction stands on a lower footing than a statutory rule.
In Union of India and Anr. v. Tulsiram Patel : AIR 1985 SC 1416, it was observed as follows :
“In the course of the arguments certain executive instructions issued by the Government of India were referred to and relied upon on behalf of the government servants. It is unnecessary to deal with these instructions in detail. At the highest they contain the opinion of the Government of India on the scope and effect of the second proviso to Article 311(2) and cannot be binding upon the Court with respect to the interpretation it should place upon that proviso. To the extent that they may liberalise the exclusionary effect of the Executive instructions stand on a lower footing than a statutory rule for they do not have the force of a statutory rule. If an Act or a rule cannot alter or liberalise the exclusionary effect of the second proviso, executive instructions can do so even much less.
Omission to Mention the Relevant Clause of the Second Proviso or the Relevant Service Rule in the impugned Orders.”
7. A conspectus of various provisions which throw light on the controversy is necessary. Preparation of ROR is covered by Chapter III of the Act and Chapter-Ill of the Rules. Section 11 deals with power of the Government to order preparation of ROR. Section 12 deals with preliminary preparation of ROR and hearing of objections. Section 12-B deals with final publication of ROR. Section 11 reads as follows :
“11. Power of Government to order preparations of record-of-rights –
xx xx xx (5) The record-of-rights shall be comprised of - (a) the khewat which shall show the character and extent of proprietary interests and may also show the particulars of other rent receiving interests; and (b) the khatian which shall show such details as may be prescribed. xx xx xx"
Preparation of ROR has to be done in the manner prescribed in Chapter III of the Rules. Particulars to be recorded are dealt with in Rule 21. Under Section 12, when a draft ROR is prepared, the Assistant Settlement Officer is required to publish the same in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or any omission therefrom during the period of publication. Under Section 12-B, when all such objections and appeals which can be filed in terms of Section 12-A have been disposed of, Assistant Settlement Officer shall finally frame the ROR incorporating all such alterations as may be necessary to give effect to the orders passed on such objections and appeals and shall cause to be finally published in the prescribed manner and such publication shall be conclusive evidence that record has been duly made under Chapter-Ill of the Act. Under Rule 25 after completing preparation of draft ROR, the Assistant Settlement Officer is required to attest a copy of the map and ROR in presence of as many of the parties as attend, at a place and on a date to be specified in the notice under Sub-rule (2) of Rule 25. The manner of final draft ROR and receiving objections and disposal of objection are dealt with in Rules 26 and 27 respectively. Final framing of ROR is prescribed in Rule 28 and final publication in Rule 29. Rule 34 appears in Chapter IV relating to maintenance of ROR and the map. A conjoint reading of the provision makes it clear that correction of ROR and map to be made on the grounds enumerated in Rule 34 have to be based on cause of action which arose after preparation of ROR. Otherwise, grant of opportunities to make objection and prefer appeal becomes a meaningless exercise. It cannot be certainly legislative intent that a person who fails to file an objection and/or prefer an appeal can overcome prescription of time prescribed for the aforesaid purpose, by resort to Rule 34. Therefore, Rule 34 cannot be resorted to by making an application in respect of a cause of action which arose prior to the publication of ROR. To that extent, executive instruction (Annexure-5) permitting correction of ROR in terms of Rule 34 for cause of action which arises before preparation of ROR cannot be maintained.
8. In view of the aforesaid legal position, the Commissioner was correct in his Conclusion that correction of ROR in respect of factual position which was existing prior to publication of ROR is not permissible. The Commissioner has observed that the party aggrieved is at liberty to move the Board of Revenue to challenge such Hal ROR or may move the Civil Court. He directed that the record will stand corrected as per the finally published Hal ROR, till the competent Court corrects the entry. The conclusions and/or directions are in order.
That being the position, there is no scope for interference in this writ application which fails and is dismissed. No costs.
S.C. Datta, J.
9. I agree.
